Codified in 17 U.S.C. § 107, copyright’s “fair use” is one of the best-known and most widely discussed doctrines in intellectual property. Commentators have noted that the § 107 balancing test is a legal “standard” but have never woven that observation into the rich “rules versus standards” literature.
After exploring fair use in relation to the insights of that literature, this Article builds on scholarship that classifies fair use jurisprudence into “clusters” and proposes that not only is § 107 a legal standard, but it is a statutory standard used by courts to generate specific, rule-like exceptions. Such discrete de facto exceptions include one for parody following the Supreme Court’s Campbell decision and one for intermediate copying of software in the wake of appellate court rulings in Sega and Connectix. Following Karl Llewelyn’s observations about legal rules, this Article reasons that these de facto exceptions may be as specific as rules in other areas of law and what we call “fair use” is actually both the overall § 107 balancing test and these specific de facto rules, causing the Jekyll-and-Hyde descriptions of copyright fair use as “vague” yet “predictable,” “ad hoc” but “stable.”
This Article then turns to “transformative use” doctrine and reasons that transformative use doctrine has already spun off one stable rule-like exception: comprehensive reproduction of works to prepare searchable databases that do not provide market substitution for the works copied. This is evidence that regardless of whether transformative use analysis dominates § 107 inquiries going forward, the fair use balancing test will continue to generate specific, rule-like exceptions in response to new social and economic developments.